Macfie v. Shaw Stewart

Factual and Procedural Background

This opinion concerns an action initiated by the Plaintiff seeking a declarator regarding a right of way. The Plaintiff alleged either a public right of way over a road marked on a plan or, alternatively, a servitude road right, to which the Plaintiff claimed entitlement as proprietor of the relevant estate. The Defendant contested the nature of the road and disputed that one terminus was a public place. The procedural issue before the court was whether the case should be tried by jury or by the Court itself, given the complexity of the claims.

Legal Issues Presented

1. Whether an action concerning a public right of way or an alternative claim for a servitude road is appropriate for trial by jury or should be tried by the Court.
2. Whether the complex nature of the alternative claims precludes trial by jury in this case.
3. Whether the allegations in the record sufficiently define the termini of the road as public places to frame an issue for a jury.

Arguments of the Parties

Plaintiff's Arguments

• The Plaintiff's counsel argued for adherence to the usual practice of trial by jury in right of way cases, which had been almost invariably followed since the introduction of jury trials in Scotland in 1815.
• He contended there was no special or peculiar feature in this case to justify departure from that practice.
• He warned against abandoning jury trials for such cases, noting the prospect of prolonged appellate arguments if the usual course were altered.
• He expressed doubt that the Court would declare trial by jury discredited in Scotland, as this would likely lead to legislative changes reducing its availability.

Defendant's Arguments

• The Defendant's counsel contended the case was special and complex due to the alternative issues presented: whether the road was a public road or a servitude road.
• He argued that one terminus of the road was not a public place, a question needing resolution by the jury.
• He cited multiple prior right of way cases involving double trials to illustrate the complexity and potential inefficiency of jury trials in such matters.
• He suggested that juries were not good judges in right of way cases, being prone to prejudice.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court considered whether the case's complexity justified departing from the established practice of jury trial in right of way actions. The Lord Justice-Clerk emphasized that it was unnecessary to make a general rule about jury qualifications in such cases but recognized that the alternative claims—public right of way and servitude road—introduced complexities that might be unsuitable for jury determination. The Court observed that questions involving servitude roads often involve mixed questions of law and fact and "peculiarities" better suited to judicial rather than jury determination.

It was noted that the dual claims related to the same possession complicated the matter, and if the Plaintiff were to abandon the servitude road claim, the public right of way issue might be appropriately tried by jury. However, as the case stood with both claims, the Court favored trial before the Court itself.

The Court also questioned whether the record sufficiently alleged the termini as public places, a necessary element for framing a jury issue, referencing the precedent in Cuthbertson v. Young. The Lord Ordinary was tasked with considering whether the pleadings could be amended to permit a jury trial on the public right of way claim.

Lord Benholme expressed that there was no inflexible legal rule mandating jury trials in public right of way cases and that discretion should be exercised based on case complexity. He found the Plaintiff's demand sufficiently complex to warrant trial before the Court. Lord Neaves concurred with this view.

Holding and Implications

The Court held that the action, as it stood with alternative claims for a public right of way and a servitude road, was too complex to be sent to trial by jury and should be tried before the Court.

The Court declined to send the case to a jury and ordered the trial to proceed before the Court.

The direct effect is that the Plaintiff’s alternative claims must be resolved judicially rather than by a jury, reflecting the Court’s discretion to depart from the usual practice where case complexity and mixed legal and factual issues arise. The opinion does not establish a new general rule but underscores the Court’s authority to determine the appropriate mode of trial in complex right of way cases.